California Overtime Exemption for Tour Bus Drivers

Posted on April 8, 2012 | 6 comments

California Overtime Exemption for Tour Bus Drivers

In the past few years, California employers have witnessed a drastic increase in overtime claims brought by former and current employees. Because of the statutory one-way attorney fee provision under Labor Code section1194, these claims are exceedingly expensive to defend and often employers are compelled to settle to avoid exposure.  Therefore, employers must be careful when scheduling their employees to work over 8 or 12 hours per work day and must compensate them in accordance with Labor Code section 510.

One of my clients recently asked me to determine whether tour bus drivers who do not cross state lines are exempt from California overtime law (Labor Code section 510 and Industrial Welfare Commission Wage Order No. 9). California overtime law for transportation employees is somewhat complicated, because drivers’ hours are regulated not only by the Department of Industrial Relations, but also by the Department of Transportation. This article discuses California overtime law for drivers who operate tour buses designed for caring more than sixteen passengers and do not cross state lines. To learn more about the FLSA overtime requirements  for commercial bus drivers and applicability of the Motor Carrier Act exemption, please refer to the following post.

Analysis

 Industrial Welfare Commission (IWC) Wage Order No. 9 regulates standards for minimum wages and maximum hours for transportation employees. Wage Order No. 9 also sets forth a list of exempt drivers who are not entitled to overtime. For example, Wage Order No. 9, section 3(L) reads, in pertinent part, as follows:

The provisions of the [overtime] section are not applicable to employees whose hours of service are regulated by:

(1) The United States Department of Transportation Code of Federal Regulations, Title 49, Sections 395.1 to 395.13, Hours of Service of Drivers, or;

(2) Title 13 of the California Code of Regulations, subchapter 6.5, Section 1200 and the following sections, regulating hours of drivers. 

Therefore, under Wage Order No. 9 the exemption provisions for drivers are divided in two categories: (1) interstate drivers covered by Federal law and (2) intrastate drivers covered by Title 13 of the California Code of Regulations (Motor Vehicles).

Let’s take a look at Section 1200 of Title 13, entitled “Scope”, to determine what type of vehicles fall within its regulation. By its terms, section 1200 covers the following vehicles:

1) farm labor vehicles,

2) vehicles listed in Vehicle Code Sections 34500 and 34500.1, and

3) two-axle trucks weighing 26,000 pounds or less which transport hazardous materials.

 Because  tour buses are not farm vehicles, or two axle trucks which transport hazardous materials, this leaves us with the question as to whether tour bus drivers are within the scope of vehicles listed in Vehicle Code sections 34500 and 34500.1.

The vehicles listed in section 34500 are:

  1. Motor trucks of 3 or more axles weighing over 10,000 lbs.;
  2. Truck tractors;
  3. Buses, school buses, school pupil activity buses, youth buses, and general public paratransit vehicles;
  4. Trailers and semitrailers;
  5. Pole or pipe logging dolly trailers and semitrailers;
  6. Any combination of motortruck and vehicles described above;
  7. Trucks transporting hazardous materials;
  8. Manufactured homes;
  9. Park trailers;
  10. Any other motortruck regulated by the PUC or ICC;
  11. Any commercial motor vehicle with a gross weight exceeding 26,001 lbs. or which tows another vehicle which has a gross weight exceeding 10,000 lbs.

In our case, the applicable type of vehicle listed by Vehicle Code Section 34500.1 is a “bus” or “tour bus”, which is defined at Section 612 as buses “designed for carrying more than 16 passengers” and which are “operated by or for a charter-party carrier of passengers, as defined in section 5360 of the Public utilities Code.”  Therefore, tour buses clearly constitute a “charter-party carrier of passengers” within the meaning of the Public utilities Code, because they are designed for carrying more than 16 passengers, and hence, are within the meaning of Vehicle Code Section 34500.1.

Conclusion

Because operation of  tour buses is regulated by Title 13 of the California Code of Regulations, subchapter 6.5, Section 1200, tour bus drivers are exempt from the overtime provisions of Labor Code section 510 and not entitled to overtime payments.

PROTECT YOUR BUSINESS - HIRE US TO DRAFT YOUR EMPLOYEE HANDBOOK

California law regulating transportation employees is highly complex and requires professional evaluation for determining employee’s overtime status. Having a narrowly-tailored employee handbook in place can diminish employer’s exposure to wage-and-hour claims, saving thousands of dollars in ligation cost. Over the twenty years, we have represented many transportation companies in San Francisco and the Bay Area. We possess  a thorough understanding of  the unique wage and work conditions inherent in the transportation industry.  If you would like our employment law attorneys to draft or  review an  employee handbook, feel free to contact us.

Print Friendly

6 Comments

  1. How about driver’s aides/assistants?

    • I would need to know more facts. Do those aides/assistants operate buses? What exactly their responsibilities and duties include?

  2. your statement that all tour bus drivers are exempt from california overtime laws puzzles me. If the route that the driver is driving is an intrastate route why would the driver not be eligible? I understand if the route was an interstate route, however the rule is divided up in to two parts, wouldn’t that also imply that the driver would be paid per the assignment that they are carrying out?

    • While I need to know more facts about your particular situation, the short answer to your question is that If a tour bus driver operates a bus that carries more than 16 passengers, such driver would be exempt from California overtime laws regardless whether he drives intrastate or crosses state lines.

  3. I have been given an oppurtuity to. Drive for a San. Francisco tour bus company, they said the say a full day work is 13hours 5days a week. Would i be exempt?
    Is it legal for them to demand you work. 65Hours a week?
    Thank you in advance for the help!

  4. So I’m taking it that if I am a class b driver driving a bus that carries 16 or more passengers for 9 hrs no over time pay for the ninth hour but my next run for four hrs in a 12 passenger mini bus should pay overtime under the California overtime laws at 1 and 1/2 times pay for the first three hrs. of that second run and two times pay for going ofer 12 hrs. in a work day for the last hr.?

Leave a Comment

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>

TALK TO A SAN FRANCISCO EMPLOYMENT LAW ATTORNEY
(415) 693-9107